Transparency fight hones in on releasing EU text messages

The issue raises thorny questions over transparency and public access to records by an EU institution that represents member states.

Asked if it registered and documented exchanges for later use, the council did not respond.

The issue was first raised by transparency advocates last November, in a wider effort to have access to messages sent by the council's former president, Donald Tusk, to foreign heads of state or heads of government throughout 2018.

"What we want is basically for text messages to be treated as emails when it comes to EU transparency rules," said Luisa Izuzquiza, who had co-filed the access request on the behalf of the Berlin-based Open Knowledge Foundation Deutschland.

They asked the release of Tusk's text messages and other mobile phone-based text communications.

This included everything from WhatsApp, Telegram, iMessage, Facebook Chat, Snapchat, Slack, Facebook and Twitter "direct messages", Signal Messenger, Wire, among others.

They noted several media reports where text messages were exchanged between leaders.

The Associated Press, for instance, once reported Tusk receiving text messages to help negotiate a bail out deal with the Greeks.

But when pressed to release Tusk's messages for the whole of 2018, the European Council declined, saying they held no such documents.

"If the content of these messages is not retained and held by the institution, it will never be possible for the public to access this content," pointed out Emily O'Reilly, the European Ombudsman, an EU administrative watchdog.

O'Reilly made the comments last week in a report over the affair.

She did not fault the Council for not having the documents, noting there is a "legal presumption that this statement is true and accurate."

But she did say EU institutions in general need to make every effort to reflect the reality of modern communications in their document management rules and practices.

This includes the increased use of text and instant messaging, she said.

The European Parliament did not respond when asked if it would take O'Reilly's recommendation onboard.

Meanwhile, the European Commission says its record-keeping policy is maintained in the virtual working environment brought about by the pandemic. It is an assessment disputed by some.

The commission also says an SMS or another type of instant messaging might equally qualify as a record in the same way as an email, an electronic pdf document or any other information that needs to be kept.

"Whether it is considered a record or not will depend on the same criteria as for any other information," said a European Commission spokesperson.

That criteria is open to both interpretation and criticism.

For the commission, it depends on whether the information is relevant to commission business, is qualified as important, and not "short lived".